2015 (4) TMI 1166 - HC - Service Tax

Waiver of pre-deposit - whether the writ petitioner has been able to make out such a strong prima facie case that entitled it to a waiver of the entire pre-deposit in connection with the appeal before the CESTAT? Held that - the writ petitioner has made out a reasonably strong prima facie case in support of its contention that service tax is not attracted for transfer of technical know-how to the petitioner from its parent company in Switzerland. The Tribunal, in similar other cases, has granted unconditional stay of the Commissioner s order on the basis of strong prima facie case and, there is no reason why the petitioner should be treated differently. It is settled law that a discretionary power must be exercised in favour of the assessee unless there is a good reason to the contrary. No reason has been disclosed by the Tribunal for refusing to exercise the discretion of full waiver of the pre-deposit in favour of the petitioner. Pre-deposit waived - petition allowed - decided in favor of petitioner.

Issues Involved:
1. Validity of the service tax demand on the transfer of technical know-how.
2. Justification for the pre-deposit requirement imposed by the CESTAT.

Issue-wise Detailed Analysis:

1. Validity of the Service Tax Demand on the Transfer of Technical Know-How:

The petitioner challenged the order dated 26th March 2010 by the Commissioner of Customs, Central Excise, and Service Tax, which confirmed a service tax demand of Rs. 1,94,44,470/- along with interest and penalties. The petitioner argued that the transfer of technical know-how from its Swiss parent company did not attract service tax as it did not fall under the category of "Intellectual Property Service" as defined under Section 65 of the Finance Act, 1994. The relevant clauses of the collaboration agreement between the petitioner and the Swiss company were cited, which detailed the technical information and rights transferred.

The petitioner contended that the technical know-how was not patented or registered as an Intellectual Property Right (IPR) in India, and hence, did not qualify as a "taxable service" under Section 65(105)(zzr) of the Finance Act. The petitioner relied on the Circular No. B2/8/2004-TRU, which clarified that only IPRs covered under Indian law were chargeable to service tax and that the permanent transfer of IPRs did not amount to rendering a service. The petitioner also cited decisions from the CESTAT and other judicial precedents to support their argument that the transfer of unregistered technical know-how did not attract service tax.

The court acknowledged that intangible properties such as know-how and trade secrets were not recognized under any Indian law for the time being in force and hence were not covered under Intellectual Property Service. Therefore, prima facie, the service tax liability did not apply to the transfer of the said technical know-how by the Swiss company to the petitioner.

2. Justification for the Pre-Deposit Requirement Imposed by the CESTAT:

The petitioner sought a waiver of the pre-deposit of the service tax amount, arguing that a strong prima facie case had been made out, which entitled them to a full waiver. The Tribunal had directed the petitioner to make a pre-deposit of 25% of the service tax demand, amounting to Rs. 40,50,000/-, while waiving the pre-deposit of interest and penalty.

The petitioner argued that requiring a pre-deposit despite a strong prima facie case constituted undue hardship. They cited judicial precedents, including decisions from the Calcutta High Court and the Supreme Court, which emphasized that undue hardship should be considered in the context of economic hardship and that discretionary power should favor the assessee unless there was a good reason to the contrary.

The court examined Section 35F of the Central Excise Act, 1944, which allows for the waiver of pre-deposit if it causes undue hardship and if the interests of revenue are safeguarded. The court noted that the Tribunal had not provided any reason for refusing a full waiver of the pre-deposit and had not discussed any potential jeopardy to the revenue.

The court concluded that the petitioner had made out a reasonably strong prima facie case and that the Tribunal had erred in not granting a full waiver of the pre-deposit. The order of the Tribunal dated 29th November 2012 was set aside to the extent it directed the petitioner to make a pre-deposit. The Tribunal was directed to hear and dispose of the appeal on merits without being influenced by the observations made in this order.

Conclusion:

The writ petition was disposed of, and the order of the Tribunal requiring a pre-deposit was set aside. The Tribunal was instructed to hear the appeal on merits without being influenced by the observations made in this judgment. Certified copies of the order were to be supplied to the parties upon compliance with requisite formalities.

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